This article analyzes the role of freedom of choice in the Canadian law of unjust enrichment. Courts must balance the plaintiff's interest in recovering a benefit, with which she did not freely part, against the defendant's interest in controlling the allocation of resources in his possession.
The author argues that, since the defendant's autonomy is sufficiently protected by the element of enrichment, the courts should not additionally protect that same interest when formulating the reasons for restitution at the third stage of the unjust enrichment analysis.
These strategies are tied to the three elements of the cause of action in unjust enrichment, to which restitution invariably responds: (1)
The second element of unjust enrichment provides relatively little scope for mediating a compromise between the parties.
Although the second element in unjust enrichment is occasionally used to strike a balance between the parties' interests, most of that work is done at the first and third stages of analysis.
The second source of difficulties arises from the fact that the concept of enrichment serves a dual purpose: It most obviously satisfies the first element of unjust enrichment (i.e., an enrichment to the defendant), but assuming that the other components of the action are similarly met, it also governs, along with the concept of a corresponding deprivation, the quantification of relief.
(18) Canadian law therefore "has consistently taken a straightforward economic approach to the first two elements of the test for unjust enrichment." (19)
As discussed below, liability for unjust enrichment is generally strict.
This thesis has intellectual appeal and it certainly could provide the basis for a coherent principle of unjust enrichment. It does not, however, represent Canadian law.
(44) Consequently, as one Canadian judge observed, it may be possible to resist an action in unjust enrichment simply by turning to the claimant and saying, "[I]t is not your job to make my choices." (45) Suppose that the plaintiff mistakenly repaired the defendant's car while he was on vacation.
It was the fear of precisely this sort of "palm tree justice" that traditionally inhibited the development of unjust enrichment. (53) The historical concern remains very real today.
Given the competing values, the defendant should not be able to defeat the plaintiff's claim for unjust enrichment merely by pointing to a slight chance that he would not have incurred the expense in the normal course of events.